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In re Tonzola

January 28, 2000

IN THE MATTER OF JUDE J. TONZOLA, AN ATTORNEY AT LAW.


The opinion of the court was delivered by: Per Curiam.

Argued September 27, 1999

On an Order to Show cause why respondent should not be disbarred or otherwise disciplined.

This is an attorney disciplinary matter. It arises from a motion for final discipline filed by the Office of Attorney Ethics (OAE) before the Disciplinary Review Board (DRB). The motion is based on the criminal conviction of respondent, Jude J. Tonzola, for forgery and theft. In a decision dated November 18, 1996, the DRB concurred in the OAE recommendation that respondent be disbarred. We remanded the matter to permit the parties the opportunity to supplement the record in respect of respondent's claim of a medical condition (manic depression-bipolar disorder) as a mitigating factor. On May 10, 1999, the DRB reaffirmed its decision to disbar respondent.

We have conducted an independent review of the record as provided by Rule 1:20-16(c). In so doing we have relied upon Rule 1:20-13(c)(1), which provides that a criminal conviction is conclusive evidence of respondent's guilt, and carefully considered the asserted mitigating factors. We hold that respondent should be disbarred.

I.

A.

Jude J. Tonzola was admitted to the New Jersey bar in 1986. In the early stages of his career, respondent might have been considered a role model. He graduated from East Side High School in Newark as class valedictorian, earned his bachelor of arts degree at Princeton University, and earned his law degree at Seton Hall Law School, where he was an editor of the law review. During varying periods between 1986 to 1993, respondent worked at different law firms, the names of which are not relevant to the disposition of this matter.

In December 1993, respondent, along with partners Richard S. Panitch and G. Daniel Nider, formed the firm of Tonzola, Panitch & Nider. The firm began doing business in February 1994. Respondent's partners encountered, in their words, "problems with Tonzola" early in their relationship. More specifically, in a joint statement submitted to the OAE, the partners claimed that respondent failed to submit his daily time sheets, failed to prepare file memoranda used by the firm's case management system, and failed to arrange for the delivery of certain client files promised by respondent as a basis for the initial formation of the firm. They also assert that respondent lied about his whereabouts (for example, he would claim to be in court on client business when he was not), charged personal expenses on the firm credit card, and was repeatedly absent from work.

Respondent's partners grew concerned. In early April 1994, they insisted that respondent see a psychiatrist as a condition of their continued association. Respondent agreed and Dr. Howard Gross was selected to conduct the evaluation. According to the partners, Dr. Gross informed them that respondent suffered from "depression with an obsessive-compulsive lying component." That opinion was formed partly on the basis of three patient visits. The partners also indicated in their statement that Dr. Gross expressed the view that respondent's condition was "fully treatable with medication" and that he could continue to practice law with appropriate supervision.

On March 26, 1995, respondent was charged in an Essex County criminal accusation with three counts of forgery, in violation of N.J.S.A. 2C:21-1a(2), and one count of theft by unlawful taking, in violation of N.J.S.A. 2C:20-3. On April 3, 1995, respondent pled guilty to one count of forgery and the theft charge. At the plea hearing, respondent admitted to the facts underlying both charges. The State dismissed the other counts.

As contained in the trial court record, the following facts formed the basis of the charges against respondent and his conviction:

The Two Forgeries

Gregory Policastro retained respondent to represent him in an expungement matter. (The representation spanned respondent's tenure at two law firms.) In response to the client's inquiry about the status of his case, respondent falsely represented that the expungement had been granted and that he was awaiting the court's order to that effect. Respondent thereupon took an unrelated, legitimate order signed by Superior Court Judge Edward W. Beglin, Jr., excised the judge's name using white-out or some other material, and photocopied it onto a separate sheet of paper to make it appear as an official order. He then tailored the language as expungement language and forged the judge's signature without the court's authorization or knowledge. Respondent presented the forged order to the client. That conduct occurred on or about October 8, 1993. The record also reveals that respondent had previously forged the signature of another Superior Court Judge, Eugene J. Codey, Jr., in furtherance of the same scheme. The forgery of Judge Codey's signature occurred on or about July 6, 1992.

The Theft and Third Forgery

Harry Romeo retained respondent to represent him in connection with the purchase of real estate. In January 1994, the client gave respondent a power of attorney to close the transaction and, for that purpose, gave respondent $27,000. Rather than utilize the funds for the closing, respondent used approximately $24,000 for his capital contribution to the Tonzola, Panitch & Nider firm and used $3,000 for his additional, personal benefit. He delivered the check for his capital contribution to the firm on or about January 27, 1994.

Respondent also misrepresented to the client the status of civil litigation related to the purchase. In furtherance of the misrepresentation, respondent forged the signature of a third Superior Court Judge, Murray G. Simon. The forgery appears on a letter dated May 2, 1994, addressed to counsel of record, purportedly advising them of the status of the litigation. Although the record is imprecise as to exact dates, it appears that the client, unaware of respondent's misdeeds, continued to believe he was being properly represented until May 1994.

On May 22, 1995, the trial court sentenced respondent to a one-year term of probation. As special conditions, respondent was required to make restitution to the Lawyers' Fund for Client Protection in the amount of $27,000 and to write letters of apology to the three judges whose signatures he forged. After the OAE learned of the original allegations, respondent consented to a temporary suspension, which was ordered by this Court on May 26, 1994. In re Tonzola, 137 N.J. 1 (1994). The suspension has been in place since that date.

B.

The DRB unanimously recommended disbarrment on November 18, 1996. Two board members expressed their view that, although the case law compelled them to recommend disbarrment, they favored a less severe discipline due to respondent's asserted manic-depressive illness and underlying bipolar disorder. On July 21, 1997, we remanded the matter to the DRB to supplement the record with expert testimony in respect of respondent's contention that his medical condition or defect should serve as a mitigating factor.

Although our remand order provided respondent and the OAE with the opportunity to request a full hearing before a special master, both declined to do so. Instead, the parties supplemented the record by submitting expert reports and relied on the briefs of counsel.

On behalf of the OAE, Daniel P. Greenfield, M.D., a psychiatrist, submitted a November 25, 1998, report (the "Greenfield report"). The Greenfield report states in part:

With regard to the issue of Mr. Tonzola's mental states and psychiatric conditions in connection with the several incidents in question, while I accept and agree that an underlying Bipolar Disorder when not effectively treated can result in acute impulsive behaviors, also driven by very poor social and professional judgment and grandiosity, and while I also accept and agree with Dr. Gross'[s] formulation that Mr. Tonzola was actively symptomatic with regard to his Bipolar Disorder at the time, it is nevertheless my psychiatric opinion -- held with a degree of reasonable medical probability -- that even if this situation were the case with Mr. Tonzola during the several specific periods of time in question in relation to the several specifically unacceptable acts and behaviors in which he engaged as an attorney (i.e., the three forgeries and misappropriation of approximately $27,000), it did not ...


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